Bill Text: NY A01168 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the labor law, in relation to the drug testing of police officers
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2009-06-23 - enacting clause stricken [A01168 Detail]
Download: New_York-2009-A01168-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
1168
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. SEMINERIO -- read once and referred to the
Committee on Labor
AN ACT to amend the labor law, in relation to the drug testing of police
officers
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The labor law is amended by adding a new article 20-D to
2 read as follows:
3 ARTICLE 20-D
4 DRUG TESTING OF POLICE OFFICERS
5 SECTION 760. LEGISLATIVE INTENT.
6 761. DEFINITIONS.
7 762. TESTING PROCEDURES.
8 763. CONFIDENTIALITY.
9 764. RELATION TO COLLECTIVE BARGAINING.
10 765. SEVERABILITY.
11 S 760. LEGISLATIVE INTENT. THE TESTING OF POLICE OFFICERS TO DETECT
12 THE PRESENCE OF CONTROLLED SUBSTANCES HAS BECOME A COMMON PRACTICE.
13 HOWEVER, THE ISSUE OF DRUG TESTING CONTINUES TO BE A VERY SENSITIVE ONE,
14 AND WHILE IT IS IN THE INTEREST OF THE STATE TO INSURE THAT POLICE OFFI-
15 CERS DO NOT ILLEGALLY USE DRUGS, IT IS ALSO IN THE STATE'S INTEREST TO
16 ASSURE POLICE OFFICERS THAT TESTING PROGRAMS ARE OPERATED FAIRLY AND
17 ACCURATELY. AT THE PRESENT TIME, HOWEVER, THERE ARE NO STATEWIDE PROCE-
18 DURES WHICH EMPLOYERS OF POLICE OFFICERS ARE REQUIRED TO FOLLOW WHEN
19 TESTING OFFICERS FOR THE PRESENCE OF CONTROLLED SUBSTANCES. THIS ARTICLE
20 ESTABLISHES A MINIMUM SET OF PROCEDURES FOR ALL EMPLOYERS OF POLICE
21 OFFICERS TO FOLLOW, BRINGING SOME CLARITY AND UNIFORMITY TO THIS ISSUE.
22 S 761. DEFINITIONS. WHEN USED IN THIS ARTICLE, THE FOLLOWING TERMS
23 SHALL HAVE THE FOLLOWING MEANINGS:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01903-01-9
A. 1168 2
1 1. "CONTROLLED SUBSTANCE" MEANS ANY ITEM OR SUBSTANCE LISTED IN
2 SECTION THIRTY-THREE HUNDRED SIX OF THE PUBLIC HEALTH LAW.
3 2. "EMPLOYEE" MEANS A POLICE OFFICER AS DEFINED IN SECTION 1.20 OF THE
4 CRIMINAL PROCEDURE LAW WHO HAS FULFILLED HIS OR HER REQUIRED PROBATION-
5 ARY PERIOD.
6 3. "EMPLOYER" MEANS THE STATE, ANY POLITICAL SUBDIVISION OF THE STATE,
7 A PUBLIC AUTHORITY, OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY
8 THEREOF WHICH EMPLOYS THE POLICE OFFICER WHO IS THE SUBJECT OF A TEST
9 FOR THE PRESENCE OF A CONTROLLED SUBSTANCE.
10 4. "LABORATORY" MEANS A PUBLIC OR PRIVATE LABORATORY WHICH PERFORMS
11 FORENSIC DRUG TESTING AND IS NOT OWNED OR OPERATED BY THE EMPLOYER.
12 S 762. TESTING PROCEDURES. 1. THE EMPLOYER SHALL PROVIDE ALL EMPLOYEES
13 WITH THE EMPLOYER'S WRITTEN POLICY WHICH IDENTIFIES THE CIRCUMSTANCES
14 UNDER WHICH AN EMPLOYEE MAY BE REQUIRED TO SUBMIT TO DRUG TESTING PROCE-
15 DURES, THE PARTICULAR TEST UTILIZED, AND THE CONSEQUENCES OF A POSITIVE
16 TEST RESULT.
17 2. ALL SAMPLE ANALYSES SHALL BE CONDUCTED BY A LABORATORY WHICH
18 PERFORMS FORENSIC DRUG TESTING.
19 3. ALL EMPLOYERS AND LABORATORIES ENGAGED IN THE COLLECTION, HANDLING,
20 TESTING OR STORAGE OF SAMPLES FOR THE PURPOSES OF THIS ARTICLE SHALL
21 ADHERE TO PROCEDURES FOR THE CUSTODY, INTEGRITY AND SECURITY OF SUCH
22 SAMPLES THAT COMPLY WITH REGULATIONS PROMULGATED BY THE DIVISION OF
23 CRIMINAL JUSTICE SERVICES.
24 4. AT THE REQUEST OF THE EMPLOYEE, THE EMPLOYER SHALL PERMIT A REPRE-
25 SENTATIVE OF THE EMPLOYEE'S COLLECTIVE BARGAINING UNIT TO BE PRESENT AT
26 THE TIME OF ANY SAMPLE COLLECTION. IN THE EVENT THAT SUCH A REPRESEN-
27 TATIVE IS NOT AVAILABLE WITHIN A REASONABLE PERIOD OF TIME, A CO-EMPLOY-
28 EE WITHIN THE SAME COLLECTIVE BARGAINING UNIT MAY BE DESIGNATED BY THE
29 EMPLOYEE TO ACT AS A REPRESENTATIVE FOR THIS PURPOSE.
30 5. THE EMPLOYER MUST SIMULTANEOUSLY COLLECT TWO SAMPLES IN SEPARATE
31 CONTAINERS AND PROMPTLY SUBMIT BOTH TO A LABORATORY. ONE SAMPLE MUST BE
32 PRESERVED IN A SECURE FACILITY IN SUCH A WAY THAT IT MAY BE SUBSEQUENTLY
33 TESTED FOR THE PRESENCE OF A CONTROLLED SUBSTANCE IN THE EVENT TESTING
34 OF THE OTHER SAMPLE INDICATES A POSITIVE RESULT FOR THE PRESENCE OF SUCH
35 A SUBSTANCE.
36 6. ANY SAMPLE THAT INITIALLY TESTS POSITIVE FOR THE PRESENCE OF A
37 CONTROLLED SUBSTANCE SHALL ALSO BE SUBJECTED TO A CONFIRMATORY TEST BY
38 GAS CHROMATOGRAPHY WITH MASS SPECTROMETRY OR AN EQUIVALENT SCIENTIF-
39 ICALLY ACCEPTED METHOD THAT PROVIDES QUANTITATIVE DATA REGARDING THE
40 DETECTED CONTROLLED SUBSTANCE OR CONTROLLED SUBSTANCE METABOLITES.
41 7. A LABORATORY MAY REPORT TO AN EMPLOYER THAT A SAMPLE IS POSITIVE
42 ONLY IF BOTH THE INITIAL TEST AND THE CONFIRMATION TEST ARE POSITIVE FOR
43 THE PRESENCE OF A CONTROLLED SUBSTANCE.
44 8. WITHIN THIRTY DAYS OF RECEIVING A REPORT INDICATING A POSITIVE TEST
45 RESULT, THE EMPLOYER SHALL PROVIDE THE EMPLOYEE TESTED WITH AN OPPORTU-
46 NITY TO HAVE THE OTHER PRESERVED SAMPLE TESTED FOR THE PRESENCE OF A
47 CONTROLLED SUBSTANCE AT A LABORATORY DESIGNATED BY THE EMPLOYEE. THE
48 TEST MAY BE AT THE EXPENSE OF THE EMPLOYEE. THE SAMPLE AND TEST IN SUCH
49 EVENT SHALL REMAIN SUBJECT TO THE TESTING, PRESERVATION AND REPORTING
50 REQUIREMENTS OF THIS SECTION AND THE RESULT OF ANY SUCH TEST SHALL BE
51 PROVIDED TO THE EMPLOYEE AND, AT THE EMPLOYEE'S WRITTEN REQUEST, HIS OR
52 HER COLLECTIVE BARGAINING REPRESENTATIVE.
53 9. ALL TEST RESULTS FROM THE LABORATORY SHALL BE IN WRITING AND SHALL
54 CONTAIN, AT A MINIMUM, THE FOLLOWING INFORMATION:
55 (A) THE METHOD OF ANALYSIS FOR BOTH THE INITIAL AND ANY CONFIRMATORY
56 TEST;
A. 1168 3
1 (B) THE RESULTS OF EACH TEST;
2 (C) THE SENSITIVITY OF THE METHODOLOGY EMPLOYED FOR CONFIRMATION, THE
3 DETECTION LEVEL, MEANING THE CUT-OFF OR MEASURE USED TO DISTINGUISH
4 POSITIVE AND NEGATIVE SAMPLES, ON BOTH THE INITIAL SCREENING AND CONFIR-
5 MATION PROCEDURES IF THE SAMPLE IS FOUND TO BE POSITIVE;
6 (D) THE ACCURACY AND PRECISION OF THE QUANTITATIVE DATA REPORTED FOR
7 THE CONFIRMATION TEST; HOWEVER, IN THE CASE OF A NEGATIVE TEST, THE
8 REPORT SHALL SPECIFY ONLY THAT THE TEST WAS NEGATIVE FOR CONTROLLED
9 SUBSTANCES; AND
10 (E) THE NAME AND ADDRESS OF THE LABORATORY PERFORMING THE ANALYSIS,
11 THE DATE THAT THE TEST WAS ADMINISTERED AND ANALYSIS WAS PERFORMED.
12 10. AFTER RECEIPT BY THE EMPLOYER OF A REPORT FROM A LABORATORY
13 CONTAINING THE RESULT OF A TEST, THE EMPLOYER SHALL PROVIDE WRITTEN
14 NOTIFICATION OF SUCH RESULT, WHETHER POSITIVE OR NEGATIVE, TO THE
15 EMPLOYEE. THE NOTIFICATION SHALL BE PROVIDED WITHIN THE EMPLOYEE'S FIRST
16 FIVE WORKING DAYS IMMEDIATELY FOLLOWING THE RECEIPT OF SUCH REPORT BY
17 THE EMPLOYER DURING WHICH THE EMPLOYEE IS IN PERSONAL ATTENDANCE EACH
18 DAY AT A FACILITY OPERATED BY THE EMPLOYER.
19 11. WITHIN THIRTY DAYS AFTER THE RECEIPT OF A REPORT CONTAINING A
20 NEGATIVE TEST RESULT, THE EMPLOYER SHALL DESTROY ALL RECORDS, REPORTS
21 AND OTHER DOCUMENTS IN ITS POSSESSION RELATED TO THE TEST AND SHALL NOT
22 THEREAFTER MAKE REFERENCE TO THE TEST IN ANY EMPLOYMENT-RELATED
23 PROCEEDINGS.
24 12. THE LABORATORY SHALL PRESERVE ALL SAMPLES IN A SECURE FACILITY FOR
25 SIXTY DAYS AFTER THE ISSUANCE OF A TEST REPORT AND, UPON WRITTEN REQUEST
26 FOR FURTHER PRESERVATION BY THE EMPLOYER OR EMPLOYEE RECEIVED WITHIN
27 SUCH PERIOD, FOR SUCH AN ADDITIONAL PERIOD OF TIME AS MAY BE SPECIFIED
28 IN THE REQUEST.
29 13. IN THE COURSE OF ANY DISCIPLINARY OR JUDICIAL PROCEEDINGS INVOLV-
30 ING A POSITIVE TEST RESULT, AN EMPLOYEE SHALL HAVE THE OPPORTUNITY TO
31 PRESENT EVIDENCE ON THE SIGNIFICANCE AND ACCURACY OF THE TEST RESULTS.
32 AN EMPLOYEE MAY ALSO PRESENT EVIDENCE THAT THE PROCEDURES FOLLOWED WITH
33 RESPECT TO THE COLLECTION, HANDLING, TESTING OR STORAGE OF THE SAMPLE
34 DESTROYED THE VALIDITY OF THE SAMPLE OR THE TEST RESULT. AN EMPLOYEE
35 SHALL ALSO BE GIVEN THE OPPORTUNITY, AT HIS OR HER REQUEST, TO PRESENT
36 THE RESULT OF ANY TEST FOR THE PRESENCE OF A CONTROLLED SUBSTANCE WHICH
37 MAY HAVE BEEN PERFORMED ON THE OTHER SAMPLE.
38 14. ANY EMPLOYER OR LABORATORY THAT IS FOUND, THROUGH LITIGATION,
39 ARBITRATION OR ADMINISTRATIVE PROCEEDING, TO HAVE GENERATED OR RELIED
40 UPON A POSITIVE TEST RESULT OF THE SUBJECT EMPLOYEE THAT IS EITHER FALSE
41 OR NOT SUPPORTED BY LABORATORY DOCUMENTATION SHALL REPORT THAT FINDING
42 IN WRITING TO THE COMMISSIONER OF THE DEPARTMENT OF HEALTH AND THE
43 COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES WITHIN THIRTY
44 DAYS OF THE FINAL DISPOSITION OF SUCH A PROCEEDING.
45 S 763. CONFIDENTIALITY. 1. EMPLOYERS, LABORATORIES AND THE AGENTS
46 THEREOF WHO RECEIVE OR HAVE ACCESS TO INFORMATION CONCERNING DRUG TESTS
47 AND THEIR RESULTS SHALL KEEP ALL SUCH INFORMATION CONFIDENTIAL. EXCEPT
48 WHERE THE RELEASE OF SUCH INFORMATION IS COMPELLED BY SUBPOENA OR COURT
49 ORDER, ANY SUCH INFORMATION SHALL BE RELEASED ONLY UPON A WRITTEN
50 CONSENT VOLUNTARILY EXECUTED BY THE EMPLOYEE. ANY CONSENT SHALL CONTAIN,
51 AT A MINIMUM, THE FOLLOWING INFORMATION:
52 (A) THE NAME OR NAMES OF PERSONS AUTHORIZED TO OBTAIN THE INFORMATION;
53 (B) THE PURPOSE OF THE DISCLOSURE;
54 (C) THE PRECISE INFORMATION TO BE DISCLOSED; AND
55 (D) THE DURATION OF THE CONSENT.
A. 1168 4
1 2. THIS SECTION SHALL NOT APPLY TO PROCEEDINGS IN WHICH THE EMPLOYEE
2 IS ACCUSED OF A CRIMINAL VIOLATION, NOR SHALL IT APPLY TO DISCIPLINARY
3 OR JUDICIAL PROCEEDINGS RELATING TO EMPLOYMENT, OR TO PROSPECTIVE
4 EMPLOYMENT INQUIRIES RECEIVED FROM ANY LAW ENFORCEMENT AGENCY.
5 S 764. RELATION TO COLLECTIVE BARGAINING. 1. NOTHING IN THIS ARTICLE
6 SHALL BE CONSTRUED TO PROHIBIT, AS A SUBJECT OF COLLECTIVE BARGAINING,
7 THE ESTABLISHMENT AND TERMS OF A PROGRAM TO TEST EMPLOYEES FOR
8 CONTROLLED SUBSTANCES WHICH IS CONSISTENT WITH THE PROVISIONS OF THIS
9 ARTICLE.
10 2. NOTHING IN THIS ARTICLE SHALL SUPERSEDE ANY COLLECTIVE BARGAINING
11 AGREEMENT IN EFFECT ON THE EFFECTIVE DATE OF THIS ARTICLE. NO COLLECTIVE
12 BARGAINING AGREEMENT COMMENCING ON OR AFTER THE EFFECTIVE DATE OF THIS
13 ARTICLE MAY AUTHORIZE TESTING OF EMPLOYEES FOR CONTROLLED SUBSTANCES
14 UNLESS IT CONTAINS TESTING PROCEDURES WHICH ARE CONSISTENT WITH THE
15 PROVISIONS OF THIS ARTICLE.
16 S 765. SEVERABILITY. IF ANY PROVISION OF THIS ARTICLE OR THE APPLICA-
17 TION THEREOF TO ANY EMPLOYEE OR CIRCUMSTANCES ARE HELD TO BE INVALID,
18 SUCH INVALIDITY SHALL NOT AFFECT OTHER PROVISIONS OR APPLICATIONS OF
19 THIS ARTICLE WHICH CAN BE GIVEN EFFECT WITHOUT THE INVALID PROVISION OR
20 APPLICATION, AND TO THIS END THE PROVISIONS OF THIS ARTICLE ARE SEVERA-
21 BLE.
22 S 2. This act shall take effect on the first of January next succeed-
23 ing the date on which it shall have become a law, provided that, effec-
24 tive immediately, the division of criminal justice services shall be
25 authorized to adopt such rules and regulations as may be necessary to
26 effect the provisions of this act.
